Nwogbo v General Medical Council

This is an appeal by the appellant, Dr Samuel Nwogbo, against the decision of a fitness to practise panel of the General Medical Council which was made on 16 April 2012 following a hearing lasting five days. In that decision they found a number of allegations which had been made against him proved. They went on to find that as a result his fitness to practise as a doctor was impaired, and finally they found that the appropriate sanction was to direct that his name be erased from the medical register.

Although the grounds advanced by the appellant on this appeal are extremely wide-ranging, I consider that the two most significant questions I have to decide are as follows. First, whether or not there was a proper reasoned basis for each of the eight separate findings of dishonesty made against the appellant by the panel; second, having regard to the allegations against the appellant which the panel found proved and which findings survive this appeal process, whether the decision on sanctions should stand should be varied or should be remitted to a fitness to practise panel for fresh determination.

I begin this judgment by summarising the allegations made against the appellant and the panel's findings. There were in broad terms two separate areas of complaint made against him. The first was that he had been charged and convicted of an offence of assault upon his then wife. Although the appellant denied and continues to deny that he was guilty of that offence, he could not deny and indeed he admitted that he had been charged and convicted of that offence by the magistrates whose decision was upheld on appeal to the Crown Court. That conviction was duly proved and thus, pursuant to Rule 34(3) of the General Medical Council (Fitness to Practise) Rules 2004, it was conclusive evidence that he had committed the offence in question.

The second area of complaint, which was less straightforward, was that he had been guilty of misconduct in that he had acted misleadingly and dishonestly by failing to notify relevant matters following on from that assault to various other parties, specifically to the GMC itself, to the trust by whom he was employed on a permanent basis, to a number of trusts for whom he had worked on a temporary basis as a locum, and to certain locum agencies with whom he had registered to obtain locum work. The panel found a number, but by no means all, of these complaints proved and, importantly, found that in relation to the GMC, in relation to his permanent employer, in relation to two of the trusts for whom he had worked as a locum, and in relation to one of the locum agencies with whom he had registered, that he had acted dishonestly in failing to notify them of the relevant matters in question.

Having made those findings, the panel went on to find, as I have said, that his fitness to practise was impaired by reason of his conviction and by reason of his dishonest misconduct as they had found it to be. They then proceeded to consider the question of sanction and decided that the only appropriate and proportionate sanction in their view was to strike the appellant's name from the medical register and also to suspend him pending that decision coming into effect.

The claimant was entitled under section 40 of the Medical Act 1983 to appeal those decisions to the High Court. In fact what he did was to issue proceedings under Part 8 of the Civil Procedure Rules seeking to challenge almost every aspect of the panel's decision. In support of his application he lodged written grounds amounting to a detailed critique of the panel's decisions, which spans some 35 pages and some 26 appendices.

When the claim form was placed before Hickinbottom J for directions, he ordered that the claim should proceed by way of a statutory appeal under Part 52 of the Civil Procedure Rules and that the claim form should stand as the Appellant's Notice, and he also ordered that the case should proceed to hearing on 17 July 2012, which is when it came on before me.

The appellant, who had represented himself before the panel, also represented himself before me. He had failed to comply with the further direction of Hickinbottom J that he should lodge and serve a skeleton argument and any additional evidence by 10 July 2012. However the defendant, through its counsel Mr Pievsky, had produced a skeleton argument which responded to the grounds as attached to the claim form. It became clear at a relatively early stage on the day of the hearing that in the circumstances one day would not be sufficient to deal with this case. Accordingly, I allowed the appellant that full day to open his appeal and I adjourned the case to the first available date to allow the respondent the time to respond and the appellant to reply, and I also gave the appellant permission to lodge and serve a skeleton argument following the first day's hearing in which he could include any further submissions which he might wish to make, and he took the opportunity to do so. I also gave Mr Pievsky permission to put in a supplemental skeleton in response and he did so as well.

On the second day of the hearing, 4 September 2012, Mr Pievsky took the morning to present his response to the appeal and the appellant had the full afternoon to reply. I therefore consider that the appellant has had a reasonable opportunity to present his arguments both orally and in writing to me and to respond orally to those arguments advanced by Mr Pievsky. I have no doubt that the appellant would have liked even longer to argue this case before me. It is evident that he feels extremely strongly about this case and that he would have wished to have made detailed submissions about most, if not all, aspects of the decision. However, I did explain to him at the outset that his task, in accordance with the criteria governing appeals such as this, was to persuade me that the decision of the panel was either wrong or unjust due to a serious procedural or other irregularity and that was what he should focus his attention on. To his credit that is what he attempted to do, proving himself to be an extremely determined advocate in his own cause.

I should begin by referring to the decision itself, which in accordance with usual practice was read out at the hearing and subsequently set out in a written letter sent to the appellant. After stating certain preliminary matters it began by setting out the 24 individual allegations brought against the appellant and setting out its findings in relation to each allegation. It then contained a section headed "determination on facts", which comprised nine pages in the letter in which the panel gave their reasons for reaching their findings in relation to each allegation. The panel then addressed and determined the issue of impairment in a section comprising five pages in the letter, and finally they addressed and determined the question of sanction in a section also comprising five pages; the letter therefore running to some 22 pages in total.

In order to understand the issues raised on this appeal I will refer briefly to the chronology of relevant events which formed the subject matter of the allegations. The history begins on 31 March 2010, which is the date of an incident in which the appellant's then wife alleged that he had assaulted her at their home. The appellant always admitted that there had been an incident, but he also always denied and continues to deny that he was guilty of any assault. At the time the appellant was employed by the Clatterbridge Centre for Oncology NHS Foundation Trust where he held a staff grade position in oncology.

On 21 April 2010 he was charged by the Greater Manchester Police with an offence of assault arising out of that incident. On 15 June 2010 the General Medical Council sent the appellant an email enclosing an earlier letter dated 2 June 2010 in which they advised the appellant that they had been informed by the Greater Manchester Police of the charge and in which they complained that the appellant had failed to inform them about that charge. In that regard they referred to paragraph 58 of a publication known as Good Medical Practice, which provided that a doctor must inform the GMC “without delay” if anywhere in the world he or she had “accepted a caution, being charged with or found guilty of a criminal offence, or if another professional body had made a finding against your registration as a result of fitness to practise procedures”. Their complaint was that the appellant had failed to inform them without delay of the fact that he had been charged with a criminal offence.

Good Medical Practice is a publication produced by the General Medical Council, the purpose of which, as stated at page 5 under the heading “How Good Medical Practice applies to you”, is said to describe what is expected of all doctors registered with the GMC. It continus :

It is accepted that in May and June 2010 the appellant undertook two locum employments via a locum agency known as Medacs. It is or it was alleged against him that he had done so without informing either Medacs or the locum employer trusts that he had been charged with a criminal offence. Those allegations were found proved by the panel, but they were not satisfied that he had acted dishonestly in not informing them. At the relevant part of the decision they explained why in the following terms:

On 4 August 2010 the criminal charge was tried in the magistrates court and the magistrates convicted the appellant of an offence under section 39 of the Criminal Justice Act 1988. They then proceeded to adjourn sentence to enable a pre-sentence report to be obtained and subsequently, on 22 September 2010, the appellant was sentenced to a term of imprisonment of two months, suspended for 18 months, with a requirement that he be under the supervision of the probation service and that he attended a domestic violence programme. They also imposed a 12-month restraining order, giving reasons in the following terms:

As the appellant has observed, although those reasons record that the child was present, in fact the child in question, who was the son of the appellant and his ex-wife, was not in the room at the time of the assault but was in his bedroom.

The appellant lodged an appeal against that conviction to the Crown Court but in the meantime certain further relevant events took place. Firstly, on 11 August 2010 the appellant, having notified his permanent employers (who I shall refer to as “CCO”) of his conviction, was excluded from his post by CCO on full pay pending an investigation which they were to carry out.

On 10 September 2010 the appellant accepted a locum position through Medacs to work at the Countess of Chester Hospital (“Chester”) over the period 13 to 17 September. It was alleged against him that he failed to inform Medacs that he had been excluded by CCO. That complaint was found not proved on the basis that, although the panel found that he had not informed Medacs of his exclusion before starting work at Chester, he had done so after they had been contacted by Chester, who had told them that they had themselves been informed by CCO of the exclusion. However, the panel did find proved an allegation that he failed to inform Chester direct of his conviction and his exclusion, and also a further allegation that he failed to inform CCO of his planned work at Chester. They also found proved allegations that these matters were misleading and also were dishonest because, in summary, they considered that matters had moved on since the previous occasion when he had offered and accepted locum work and, in particular, because since then he had been convicted and excluded on full pay by CCO.

It appears that upon being informed of these matters Medacs informed the appellant that they were unwilling to offer him any further locum work until the whole matter had been resolved. The appellant then registered with two other locum agencies. The panel found that he had registered with an agency known as Total Assist in October 2010, although the appellant had denied this saying that he had only registered in February 2011. However, the panel acquitted the appellant of an allegation that he had failed to notify Total Assist of his conviction. So far as the second locum agency is concerned, an agency known as Locum Links, it was common ground that he did not register with them until February 2011 and an allegation that the appellant had failed to notify them of the conviction was not in the end proceeded with.

On 8 November 2010 the appellant resigned from his employment with CCO, thus bringing to an end the disciplinary proceedings brought against him by them. On 21 January 2011 the appellant's appeal against his conviction was dismissed by the Crown Court.

On 22 March 2011 an interim order of conditions was made by an interim orders panel of the General Medical Council. The conditions which were imposed were five in number, the first four of which imposed obligations on the appellant to inform the GMC of matters including any professional appointment that he might accept and condition 5 was in the following terms:

It was quite clear, therefore, in my judgment that the interim orders panel was making it explicit to the appellant that it was his obligation to bring to the attention not just of the locum agency but also the locum employer itself that his registration was subject to those conditions, and that he had to do so, in the case of the locum employer, to the immediate line manager at least 24 hours before starting work.

Between 11 April 2011 and 17 May 2011 the appellant was employed as a locum by the Mid-Staffordshire Hospital. There was an issue before the panel as to whether he had been engaged through Total Assist throughout, as he contended, or in relation to the initial period through Locum Links. The panel found that he had initially been engaged through Locum Links. They also found proved an allegation that the appellant had failed to notify Locum Links of the existence of the interim order before starting at Mid-Staffordshire Hospital and that this was dishonest. This was specifically on the basis that they said that he must have been aware of what was required of him under the terms of the interim order. They also found proved an allegation that the appellant failed to notify Mid-Staffordshire of the GMC investigation, of the conviction and of the interim order and again that these failures were dishonest. Again, that was specifically on the basis that he must have been aware of what was required of him by the interim order and in the circumstances which obtained at that time.

I must now deal with the approach the court takes in relation to appeals from decisions of fitness to practise panels of the GMC. Mr Pievsky has referred me to a number of authorities in which the approach which the court takes to appeals under section 40 of the Medical Act is considered. There is no dispute as to the relevant principles, which are well known. I have found particularly helpful a recent summary undertaken by Langstaff J in the case of Bhatt v GMC [2011] EWHC 783 (Admin), which I repeat and gratefully adopt.

“4.

An appeal under s.40 of the 1983 Act is by way of rehearing (CPR Part 52, PD 22.3). This court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings before the lower tribunal (CPR Part 52.11).

5.

In Dr. Bhupinder Sacha v General Medical Council[2009] EWHC 302 (Admin)Lloyd-Jones J. reflected at paragraph 8 on what this implied:

‘In considering these matters, I bear in mind, and I give appropriate weight to, the fact that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect, and that it has had the advantage in this case of hearing the evidence from live witnesses. (See the observations of Auld LJ in Meadow v General Medical Council[2007] QB 462, [2006] EWCA 1390 at paragraphs 125 and 197). I also have in mind the observation of Laws LJ in Fatnani and Raschid v General Medical Council[2007] 1 WLR 1460, [2007] EWCA Civ 46 at paragraph 20, that on an appeal under section 40: ‘... the High Court will correct material errors of fact and of course of law and it will exercise a judgement, though distinctly and firmly a secondary judgement, as to the application of the principles to the facts of the case.’

6.

In Southall v General Medical Council[2010] EWCA Civ 407, Lord Justice Leveson gave further guidance (at paragraph 47):

‘First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v Austin Motor Co Ltd [1955] AC 370); more recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per Stuart-Smith LJ in National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 Lloyd's Rep 455 at 458). Further, the court should only reverse a finding on the facts if it ‘can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread’ (per Lord Hailsham of St Marylebone LC in Libman v General Medical Council[1972] AC 217 at 221F more recently confirmed in R(Campbell) v General Medical Council[2005] 1 WLR 3488 at [23] per Judge LJ). Finally, in Gupta v General Medical Council[2002] 1 WLR 1691, Lord Rodger put the matter in this way (at [10] page 1697D):

‘In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position.’ ‘’

All that said, it nonetheless remains for a court – in ‘appropriate cases’, and if ‘necessary’ - to come to its own view and substitute that for the decision of a disciplinary body (per Auld L.J. in Meadow v General Medical Council[2006] EWCA Civ 1390, [2007] QB 462, at paragraph 120, albeit that he too recognised that the courts should accord disciplinary bodies assessing evidence of professional practice in their respective fields an appropriate measure of respect). At paragraph 128 he added:

‘Given the structure of CPR 52.11, the difference between a ‘review’ and a ‘re-hearing’ is clearly thin and variable according to the circumstances and needs of each case, not least in the stipulation in CPR 52.11(2) of the norm for both processes of no oral evidence or evidence not before the lower court. The analysis of May LJ in E.I. Du Pont Newmours & Co v S,T, Du Pont[2003] EWCA Civ 1368, CA, at paragraphs 92-98, is instructive on the overlap between the two, namely that a ‘re-hearing’ in rule 52.11(1) may, at the lesser end of the range, merge with that of a ‘review’, and that ‘[a]t this margin, attributing one label or the other is a semantic exercise which does not answer such questions of substance as arise in any appeal’. But even when a review is a full re-hearing in the sense of considering the matter afresh, if necessary by hearing oral evidence again and, even admitting fresh evidence, the appellate court should still, said May LJ at paragraph 96, ‘give to the decision of the lower court the weight that it deserves’. This elasticity of meaning in the word ‘re-hearing’ in CPR 52 11 should clearly apply also to the same word in the PD. It all depends on the nature of the disciplinary tribunal, the issues determined by it under challenge and the evidence upon which it relied in doing so, how the High Court should approach its task of deciding whether the decision of the tribunal was, as provided by CPR 52.3(a) ‘wrong’, and, whether on the way to reaching such a conclusion, it draws, pursuant to CPR 52.4 ‘any inference of fact which it considers justified on the evidence’. "

At paragraph 9 Langstaff J summarised the position as follows in a passage which I gratefully adopt:

“9.

I accept and adopt the approach outlined in these authorities, in particular that although the court will correct errors of fact or approach:

i)

it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;

ii)

that the tribunal has had the advantage of hearing the evidence from live witnesses;

iii)

the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body;

iv)

findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from”

I have also been referred to the powers of the court on an appeal such as this, provided for by section 40(7) of the Act. In particular I have been reminded that the court has, in appropriate cases, the options of quashing the decision, substituting a direction which could have been given by the panel, or remitting the case to be referred to a fitness to practise panel to be disposed of in accordance with such directions as it may give.

I should also say something in this case about the nature and extent of the obligation on a panel to give reasons for its decision. I find a detailed consideration of that issue in the judgment of Leveson LJ in Southall v GMC to which I have already referred, in a section which begins at paragraph 49 and continues through to paragraph 59, which I do not need to read out in this judgment but to which I have had regard. If I may attempt to summarise the position as it appears from that decision, it is as follows: 1) in general there is no obligation upon the panel to give reasons for its decisions; 2) in a straightforward case where there is a simple conflict of factual evidence there is no need to set out reasons because it will be obvious from a statement of the findings, when read with the nature and the contents of the evidence, why the panel has decided what it has; 3) but that in a more complex case there is a need to give reasons, which may be short and summary, but should still be adequate so that the losing party may understand why he or she has lost.

So far as the burden and standard of proof is concerned, it is clear and not in dispute that, in reaching its decision on the facts, the burden of proof rested on the GMC and the standard of proof was to the civil standard, the balance of probabilities. The decision itself records that this was the advice given to the panel by the legal assessor and there is no complaint made about that.

I should also say something about dishonesty. The decision also records that the legal assessor advised the panel as to the appropriate test to apply in relation to the allegations of dishonesty. The test he advised them to apply was the two-stage test, commonly referred to as the Ghosh test ((1982) 75 CR App. R154)and it is clear from the decision that that is the test which they applied, and again there is no complaint about that.

Finally I should say something about the question of sanction. Again, Mr Pievsky referred me to authority in relation to the court's approach on an appeal in relation to the question of sanction. In particular, in the case of Raschid v GMC to which I have already referred, the Court of Appeal allowed an appeal by the GMC from a decision of Collins J at first instance, because in their view he had effectively conducted an exercise in resentencing and had not sufficiently recognised the two principles particularly applicable to appeals from decisions on sanction.

The first is that the function of the panel in imposing sanctions is not the same as the function of a court in sentencing offenders, not least because the panel must have regard to the public interest and to the reputation of the profession as a whole as well as to factors relevant to what would be an appropriate punishment for the individual doctor.

The second is that the panel has special expertise in making judgments as to the seriousness of particular misconduct and as to what measures are required to maintain the standards and reputation of the profession, which the court does not have, and that the court should accordingly accord appropriate respect to that expertise. The court should not interfere unless the decision is, to use the words of Jackson LJ in The Law Society v Salsbury [2008] EWCA Civ 1285 at paragraph 5, “clearly inappropriate”.

I now turn to the individual allegations. I should being by recording that the appellant, in his written submissions, made a general complaint that the whole process was unfair because the panel, he said, had made up their minds in advance and was in effect going through the motions. That, in my judgment, is an allegation which lacks any substance whatsoever and, indeed, is contrary to the way in which he himself complimented the panel on their fair-minded and diligent approach to the matter at various points in the hearing before them. In fairness to the appellant he did not press this in his oral submissions and, having considered the transcripts of the evidence, in particular the questions asked by the panel members themselves, and having also considered the detailed manner in which they addressed and decided the individual allegations, including those where they found allegations not proved, it is quite clear in my judgment that they were nothing if not scrupulous, open-minded and conscientious in their approach to the case and to the evidence. Therefore I reject this general complaint, insofar as it is pursued, without hesitation.

I should next say something in relation to the allegation which relates to the conviction. As I have said the effect of Rule 40(34)(3) of the 2004 Rules is that the conviction for the criminal offence of assault by battery is conclusive evidence that the appellant committed that offence. It was not therefore open to the appellant as a matter of law to challenge the allegation that he committed the offence, even though he sought to do so before the panel, and nor would it be open to him to challenge the panel’s decision on that point before me. There is, however, a question which the appellant has raised as to whether or not the panel were entitled to go on to make adverse findings against him in relation to the circumstances surrounding the assault and his response to his conviction. In his written supplementary submissions the appellant has complained that the panel placed undue weight on the evidence of the attending officers, whose evidence was inconsistent and reliable, and that the panel unfairly interrupted his cross-examination of those officers. He further submitted that the panel was wrong to have regard to evidence in relation to the surrounding circumstances going beyond the fact of the conviction itself.

In considering those complaints, I have reminded myself of what counsel then instructed by the GMC said to the panel in her opening address about why the attending officers were being called. She said that the purpose of so doing was to ensure that the panel had the fullest picture of the circumstances of and around the index offence and the information it needed to deal with the matter fully and fairly. That, as it seems to me, was an approach which the GMC was fully entitled to take in a case such as this. Furthermore I also need to have regard to what reliance the panel placed on this evidence. In the section of the decision in relation to impairment the panel said this:

It is apparent, therefore, that the panel accepted the evidence of the police officers that the appellant's attitude towards them was obstructive and difficult. That is clearly, in my judgment, a conclusion which they were entitled to reach. I bear in mind that the police officers have been cross-examined in relation to this incident both in the magistrates court and again on appeal to the Crown Court and again by the appellant himself before the panel, and that the appellant himself was able to and did give evidence about these matters and to make submissions to the panel in relation to the evidence of the police officers. In my judgment the panel was fully entitled to accept their evidence as credible, notwithstanding that the appellant was able, as he has done, to point to some inconsistencies in their evidence. This is an argument where the observations of Leveson LJ at paragraph 47 of the decision in Southall are particularly apposite. The panel has clearly decided to accept the evidence of the police officers, and it cannot possibly be said in my judgment that their evidence was so inconsistent or otherwise so unreliable that the panel was not entitled to accept it. Indeed, having reviewed the evidence before the panel, I would go further and would say that there was every reason why the panel should have preferred their evidence to that of the appellant.

I therefore reject that criticism of their approach. So far as the complaint about their interruptions is concerned again, having read the transcript of the cross-examination, in my judgment it cannot be said that the panel was doing any more than trying to ensure that the appellant as a litigant in person kept his cross-examination focussed on relevant as opposed to irrelevant matters, in circumstances where of course there was the difficulty that he was not able to challenge before them the fact of the assault because of the conviction.

More generally, insofar as complaint is made about the way in which the panel approached the circumstances of the conviction and the appellant's subsequent approach to that assault and his conviction, firstly it seems to me that the panel was obviously entitled to place reliance upon the findings of the magistrates court, expressed in a memorandum of conviction, in relation to the circumstances of the conviction, and that all of those findings were fully justified in my judgment on the evidence presented to them by the police officers, which as I have said they were fully entitled to accept. I also consider that the panel was entitled to place reliance upon the contents of the pre-sentence report which had been placed before the magistrates in relation to, as they said, his continuing unwillingness to accept the full facts of the assault and his conviction for the offence. The appellant submitted to me that he had complained to the panel that there were factual errors in the pre-sentence report which he had not been allowed to contest, and he further observed that the author of the report had not been called before the panel as a witness. He also made a further point about the pre-sentence report because he said that, although the panel observed that no further evidence had been placed before them to demonstrate that the position had changed since the pre-sentence report, in fact he had produced a letter from his probation officer, which did show that the position had changed. That letter, which is appended at P to his claim document in this case, is addressed to the GMC, is dated 2 May 2012 (although I think that can fairly be assumed, on the basis of an another email which I have seen, that the email was in fact produced some time in February 2012), and records that the author, a probation officer Mr Preston, dealt with the supervision element of the order made by the magistrates; that the appellant’s response to this had always been good; that he was found to be informed as to the relevant issues in relation to domestic violence and that he expressed some regret for his own anti-social behaviour.

There is some issue as to whether or not that letter was put before the panel. It appears to have been obtained for the purpose of putting it before the interim orders panel and there is no positive evidence that it was put before the fitness to practise panel in April 2012. However, even if it was, in my judgment these points do not assist the appellant. It is clear that what the panel did was to form the conclusion that the appellant's behaviour throughout the whole period from the date of the assault to the date of the hearing before them, of which the content of the pre-sentence report formed only one part of the overall picture, all fully demonstrated his inability to accept the full facts of the assault or his conviction for that offence. Even if the panel had excluded any reference to the pre-sentence report from their consideration, and I am by no means satisfied that they were obliged to do so, there is absolutely no reason, in my judgment, to believe that their conclusion would have been any different.

The same is true even if they had seen the probation letter, and again I am by no means satisfied that they had. All that it demonstrates is that the appellant had completed the course, that he was informed as to the relevant issues and that he had expressed some regret for his own anti-social behaviour (not, I interpose, his responsibility for the assault). None of that in my judgment detracts in any way from the panel's conclusion, which is as I have said that he was still unable to accept the full facts of the assault and his conviction. I therefore reject the appeal insofar as it complains either of the panel's approach and findings in relation to the circumstances of the assault or to his attitude to that assault and subsequent conviction.

I now turn to the individual allegations of misconduct. I should begin by saying that, although the appellant has criticised a number of individual findings and has subjected the evidence of a number of the witnesses called by the GMC to detailed and sustained criticism, it is not necessary for me to go through each and every one of his complaints. That is because there were a number of allegations which were found not established, about which it is obviously necessary to say no more, and also a number of allegations which, although were found proven factually, the panel was not satisfied that the appellant's conduct in relation to them was dishonest and it follows that, save where necessary to refer to those findings to understand the criticisms of the findings of dishonesty actually made, I do not need to delve into those particular matters.

I begin then by referring to the first allegation where the panel was satisfied as to dishonesty, and that is the allegation that he failed to notify the GMC that he had been charged with the criminal offence. The panel's findings are found under paragraph 8 where they found proved the allegation that he failed to inform the GMC without delay that he had been charged. The panel, giving its reasons, noted its findings that he had indeed been charged and they said this:

“Furthermore the panel has noted that during the course of your evidence you accepted that you did not inform the GMC of the matters alleged in paragraph 1 and acknowledge that you should have done so "

In his evidence the appellant did not accept that at the time he knew that he was obliged to inform the GMC that he had been charged. That is clear from the transcript of his evidence. And indeed, of more concern to me, there is no indication in the transcript that it was ever put to the appellant in terms under cross-examination that he had been dishonest in failing to notify the GMC of the charge without delay. The issue was only addressed in cross-examination on day 5, as one sees at page 32 of the transcript, where it was not put to him in terms that he knew at the time that it was wrong not to inform the GMC. I do accept, and it is clear from the transcript, that the appellant was by no means the easiest of witnesses to cross-examine, but that does not in my judgment justify or excuse the failure to put the point to him in terms so that he could deal with it. Mr Pievsky submitted that, taken in the round, the appellant had a sufficient opportunity for him to put his case in this regard and I accept that submission insofar as it goes, but I do take the view that, since dishonesty is a serious allegation which was being distinctly made against him, it was necessary for that allegation to be put to him in unambiguous terms so that he had a fair opportunity of dealing with it in his evidence.

An associated concern which I have is that, as I have said, the panel acquitted him of dishonesty in relation to the contemporaneous allegations of failure to notify his locum agency and temporary employers. That was on the basis of his express state of mind. Whilst I appreciate that the panel explained in their reasons why they took a different view in relation to this allegation, the only reason they gave was that he had read Good Medical Practice four years previously. It is, however, I consider -- with respect to the panel -- fundamental that to find dishonesty it would not be enough to find that he had read this guidance four years ago. They would also have needed to have been satisfied that in March and April 2010 he knew that he ought to have reported the charge to the GMC. Without such a clear finding the danger is that the appellant has been found guilty of dishonesty on the basis of a finding not that he did in fact know but that he should have known at the time of the need to inform the GMC. That is particularly important in this case because one of the points which the appellant advanced before the panel was that he had informed and kept informed his permanent employers, CCO, without delay both about the incident and about the subsequent charge. Indeed the witness called by the GMC on behalf of CCO, a Dr Husband, accepted that this was the case, and it was an important plank of the appellant's defence that his openness with CCO was inconsistent with him dishonestly seeking to conceal the fact that he had been charged from the GMC. The panel's failure to address that point reinforces my misgiving that they may not have given full and proper consideration to precisely what was required in order to find him dishonest in relation to this allegation.

Mr Pievsky has sought to support the panel's conclusion on the basis that it is a fair and reasonable reading of the reasons as a whole that the panel found, as they were entitled to do, that the appellant was not a credible witness and therefore they were entitled to reject his protestation that he was not aware of the need to inform the GMC without delay in 2010. In his oral submissions he identified a number of reasons why he said the panel would have been fully entitled to find the appellant as not being a credible witness in relation to this and other aspects of the case. I have to say that, without intending any discourtesy to the appellant, I agree with that submission in the sense that I am quite satisfied that if the panel had made a finding that they found the appellant to have been a thoroughly unconvincing witness so that they were unable to place any weight on any protestations of innocence by him, that would have been a finding which would in my judgment have been unassailable on appeal. However, the difficulty with that argument, it seems to me, is that the panel have not anywhere in their reasoning made a finding to that effect. I do not consider that I can infer that they made such a finding, in particular when, as I have said, they took the approach of considering the allegations separately, making no general finding in relation to credibility overall, and indeed making certain findings which showed that they accepted the appellant’s evidence in certain important respects.

In the end it seems to me that there are two factors which satisfy me that the panel's decision on this point cannot stand: first and foremost, the failure to put the allegation in terms to the appellant in cross-examination so as to give him the opportunity to deal with it; and second, their failure to state their conclusion, if such it was, that he knew in 2010 that he was obliged to inform the GMC that he had been charged and therefore he was dishonest in not doing so.

I do accept Mr Pievsky's submission that the court should not be too ready to pick holes in the reasons given by panels and I also accept, as I have said, that this is not a case where a panel is required to give anything like a full reasoned judgment, but I do consider that in order to find someone guilty of dishonesty the panel must demonstrate in its reasons that it has approached the issue on the correct basis and that they have addressed, if only shortly, the substance of the defences put forward and explained why they have nonetheless found him to be dishonest. I regret to say that, in my judgment, the panel have failed to do that in relation to this allegation. I therefore allow the appeal in relation to that particular allegation.

I move on now to the allegations of dishonesty in failing to notify the Countess of Chester Hospital Trust of the conviction and of the exclusion.

In their reasons in relation to charge 13 the panel found, by reference to the evidence of Mrs Bennett, the medical staffing specialist at Chester, that the appellant did not inform Chester of the conviction or the exclusion and that Chester only became aware of those matters following discussions with CCO. They also noted that "during the course of your evidence [the appellant] accepted that you did not inform Chester of the matters alleged”.

In his appeal document the appellant has contended that this was wrong and that he did not in fact accept this, but it is clear from his own statement, which he read to the panel in the course of his examination in chief on day 4 at page 64, that he was not suggesting that he had informed Chester himself. The case which he did clearly advance was that he was not dishonest because he believed that it was not for him but for the agency to do so. That was a defence which of course the panel was obliged to address when considering whether or not his non-notification was dishonest.

I should say that, in his submissions in reply, the appellant sought to advance a case that his cross-examination of Mrs Bennett showed that she accepted that Chester had been made aware of the conviction, but I do not accept that is a fair reading of the evidence given by Mrs Bennett in cross-examination and it is clear in my judgment that the panel was fully entitled to reach the conclusion, which it obviously did, that this was not Mrs Bennett's evidence.

What about, then, the defence that the appellant genuinely believed it was sufficient to tell Medacs? The first question to consider is whether or not there was evidence that the appellant had told Medacs. So far as the fact of the conviction is concerned, the GMC did not advance a case to the effect that the appellant had not informed Medacs of this. Indeed Mrs Learoyd of Medacs, the witness called before the panel, stated in her witness statement that he had done so sometime between 5and 17 August 2010. Furthermore the appellant has referred me to an earlier email, which shows that he had earlier informed a Mrs Bell, who was the employee who he had the majority of dealings with, of the charge and of the date fixed for the hearing and which stated in terms that he was willing for that information to be disclosed to the employing trusts. All of that, it seems to me, provides powerful support for his case that not only did he inform Medacs of the conviction but also that he was willing for Medacs to pass that information on to his locum employer. It follows, it seems to me, that if the panel was to find the appellant dishonest in this regard they would have needed to reject his defence that he genuinely believed that it was sufficient for him to inform Medacs. The question that I have to consider is whether it can properly be taken from the reasons which they gave that they did so.

In the letter where they dealt with this aspect of the matter, the panel said this:

At paragraph 12 they go on to say this:

The appellant has vigorously challenged these conclusions. He says that paragraph 59 could only be taken as referring to the locum agency because he says it was the agency which was his employer, and he points to evidence given by two witnesses called by the GMC who accepted this as a general proposition under cross-examination. He says that he had told Medacs and he believed that they would tell Chester. Whilst I accept that those are powerful arguments which it is clear the appellant put powerfully to the panel as he did to me, it does not seem to me that on analysis they can prevail in the context of this appeal. The panel heard the appellant give evidence; they heard the other relevant witnesses; they referred, as they were entitled to do, to the provisions of Good Medical Practice; they had their own professional knowledge and expertise as to what a doctor could have expected to know. They made a clear finding, by reference to Good Medical Practice and by reference to the appellant's own state of knowledge and position at the time, that he was dishonest in not informing Chester direct of the conviction, and hence it seems to me they must inevitably have rejected his defence to the contrary in reaching that decision. I consider that this was a decision that they were perfectly entitled to reach and that they gave sufficient reasons for doing so. Accordingly, I reject the appeal against the finding of dishonesty in relation to not notifying the conviction to the Chester Hospital Trust.

In relation to the non notification of the exclusion, in my judgment the position is even stronger. There was a specific finding under paragraph 12 made by the panel that the appellant did not inform Medacs of the exclusion until after he had started working at Chester and until after they had been informed by Chester, who had in turn been informed by CCO of this exclusion. That, it seems to me, is a finding which the panel was clearly entitled to reach. Although the appellant contends that he informed Mrs Bell orally of his exclusion, there was no positive evidence to that effect and there was no specific cross examination of Mrs Learoyd to that effect either. Indeed, it can be seen that the contemporaneous booking form sent in by Mrs Bell showed that the appellant had declared the fitness to practice proceedings, but had not referred to anything else, and there were two separate letters from Medacs to the panel put in by the GMC at pages 137 and 138 of the bundle which confirmed that. Indeed Medacs said, in my judgment perfectly credibly, that once they became aware of the exclusion they were not prepared to put the appellant forward for further posts; if that evidence was credible, and, on the face of it, it appeared to be, then it would be consistent with the appellant not having informed Mrs Bell of his exclusion before he was offered and took up the post at Chester.

The appellant has subjected all of this to close criticism. He has pointed me to his cross-examination of Mrs Learoyd where she accepted that she was unable to speak to what had been said in the telephone conversations with Mrs Bell. He has pointed to the GMC's failure, as he put it, to make any contact with Mrs Bell or to call her as a witness. He has pointed to a document put before the interim orders panel and also before the fitness to practice panel which shows that he was contending he had in fact been in regular contact with Mrs Bell and keeping her informed of developments, and he has referred in his supplementary submissions to a fact sheet produced by the GMC which refers to their obligation to investigate complaints and obtain witness statements.

As against all of this, Mr Pievsky submits that it is not for the GMC to make out the appellant's case for him before the panel. He knew what Mrs Learoyd was going to say from her witness statement; if he wanted to challenge her evidence in this regard he should have put it to her in terms. If he considered that Mrs Bell would support his evidence he could, and should, have attempted to contact her to make arrangements directly to call her as a witness himself, or at least have notified the GMC that this was his case and asked for them to contact Mrs Bell and obtain a witness statement from her. None of this he did. Insofar as he says, “well, I was not legally represented, I did not know what I had to do”, I have sympathy for him, but that cannot in my judgment impose a positive obligation on the GMC to produce witnesses or to prove his defence for him. That was for him to do; and, having regard to all of these circumstances, I am satisfied that he has no real prospect of undermining the clear finding by the panel that he did not tell Medacs in advance that he had been excluded by CCO, and that that obviously fatally undermined his defence that he was not dishonest because he believed it was sufficient to tell Medacs before starting with Chester.

But finally, and even if I am wrong about this, it still would not enable the appellant to overcome the problem that the panel was perfectly entitled, as it did, to reject his evidence that he did not think he was dishonest because he had told Medacs, and in this regard the panel referred again to its earlier findings and then said this:

So in other words, it seems to me, they made a specific finding that, because of the position vis-a-vis the appellant and CCO, he was dishonest in not notifying that fact to Chester, and it seems to me that that is a decision they were entitled to arrive at, and one in respect of which they gave sufficient reasons, and I am therefore satisfied that this decision cannot be criticised and the appeal must fail so far as a challenge to this decision.

The next allegation of dishonesty related to the allegation that the appellant had failed to notify CCO that he was planning to accept a locum position at Chester. The finding in this regard at paragraph 14 was that the panel noted the evidence of Dr Husband, who confirmed that:

The appellant accepted that he did not inform CCO; he accepted that with the benefit of hindsight he was wrong not to do so; his argument was that he did not think that he was dishonest in not doing so at the time. Before me he devoted some attention to considering the contractual position as between himself and CCO, and it is fair to say that the contract of employment itself does not require him in terms to obtain employer approval before working elsewhere whilst excluded from his permanent position. Dr Husband accepted that the appellant had not been expressly informed that this was the position, but relied upon a document entitled "Maintaining High Standards in the Modern NHS Service" to support his belief that nonetheless the appellant should have done so. However Dr Husband also accepted that this was not something which was explicit from that document, and he also accepted that this particular document had not been sent, or at least there was no evidence that it had been sent, to the appellant at the time he was appointed to his position.

All of those points I accept have force, but they do not in my judgment engage with the real issue here, which is that the panel made what was a clear finding, that in circumstances where the appellant knew that he was still under contract with CCO and that he was excluded on full pay whilst they were conducting an investigation, it was dishonest for him not to inform them that he was taking locum work elsewhere. That, in my judgment, is a finding which they were clearly entitled to reach, and is sufficiently reasoned, and I am satisfied therefore that this ground of appeal must fail.

The next allegation of dishonesty was the allegation of dishonestly failing to inform Locum Links of the existence of the interim order. The panel in this respect relied upon the evidence of Mr Probert, who was a witness called by the GMC and employed by Locum Links, and they recorded that he had told them that in February 2011:

The appellant argued that in fact Mr Probert had admitted that Locum Links had been informed of the interim order of conditions but, having considered the transcript of his evidence, in particular the evidence given on day 3 at pages 32 to 33, I am satisfied that that is simply not correct. It is clear, as the panel recorded, that Mr Probert accepted that Locum Links was aware of the GMC investigation and also that it was possible that they had been informed of the conviction, which is doubtless why that was deleted as an allegation, but he was not cross-examined and never agreed to any suggestion that Locum Links was informed of or was aware of the interim order.

In those circumstances it seems to me that the panel was perfectly entitled to accept Mr Probert's evidence on this point and to conclude, as they did, that the appellant was dishonest in not notifying Locum Links, particularly in circumstances where, as the appellant had to accept, the interim order was absolutely specific as to who had to be notified. I should say that there was a fierce debate before the panel, as I have said, as to whether it was Locum Links or Total Assist who were the introducing locum agency in the first period, but that is not a point which is relevant in my judgment to this particular question, because on any view it was clear that Locum Links were asserting that they were the introducing locum agency and the terms of the interim order were, in my judgment, absolutely explicit.

The final series of findings of dishonesty related to the allegation that the appellant had failed to inform Mid Staffordshire of the GMC investigation, of the conviction and of the interim order. At paragraph 23 the panel referred to the witness statement and oral evidence of Dr Obhrai, who was called on behalf of Mid Staffordshire to give evidence before them. They recorded that he was clear that you did not inform them of any of the matters alleged. They continued:

The appellant complained that the second reason given was wrong, because his position before the panel was that he had told a Mr Tarren at Mid Staffs of those matters. It does appear that the appellant's case was inconsistent on this issue because, as I have said, his principal argument was that he did not need to inform, and therefore did not inform, the locum trust employers because it was not necessary for him to do so, having informed the locum agencies, whereas it is also fair to say that at one point he did also suggest that he had in any event in discussions informed Mr Tarren anyway. The panel referred, as I say, to evidence given by Dr Obhrai, who was a medical director of the Trust. He confirmed in his evidence that there was no documentary record that the interim order had been reported. It was put to him in terms that the appellant had told others within his organisation. He said there was no record of it, but he did not say that he had spoken specifically to other individuals and therefore that he could confirm on the basis of what they said to him that they denied having been told.

However it is also right to say that on that same day, day 2 of the hearing, the transcript at page 39 records counsel for the GMC objecting that the specified individuals, Mr Tarren and a Dr Oke, had not previously been identified by the appellant as having been informed, and this was repeated on the next day, day 3, at page 38 of the transcript, where counsel suggested that if the appellant provided details of these witnesses the GMC would seek to trace them and to ascertain their position on this issue. However it is clear from the transcript that the appellant declined to do so. The appellant says that by that stage it should already have been done, and he complains that he had referred to Mr Tarren in a document submitted earlier to the interim orders panel and again to the GMC, so that they should have taken the onus of investigating this upon themselves at that earlier stage. But Mr Pievsky's response was the same as in relation to the argument in relation to Mrs Bell; in other words that it was not for the GMC to make the appellant's case for him. In addition of course he had the further argument in this case that when the GMC had offered to do so, that was an offer which was rejected by the appellant. I am satisfied that Mr Pievsky is right for the reasons he gave. If the appellant wanted to put before the panel a positive case that he had told individual members of Mid Staffs then it was for him either to obtain those witnesses and to bring them to the panel hearing, or at the very least to make it clear at an early stage to the GMC that he wanted them, if he could not do it himself, to trace and prove those witnesses. Having failed to do so, he cannot complain, in my judgment, that the GMC failed to comply with its investigatory responsibilities.

I should also say that it seems to me that the panel were perfectly entitled to accept the evidence of Dr Obhrai. He gave evidence explaining why he was sure that Mid Staffs were not informed, in particular about the interim order for conditions because, he said, if they had known they would have had to consider whether it was appropriate to engage the appellant in the light of that interim order, and he repeated that explanation again when he was specifically asked about it by a member of the panel. In those circumstances it seems to me that the panel were perfectly entitled to accept the evidence of Dr Obhrai and to make the findings which they did, and the same is true, in my judgment, in relation to the findings of dishonesty; they were findings which the panel were clearly entitled to make and were findings which, in my judgment, were sufficiently reasoned.

Standing back, therefore, and setting out my conclusions overall in relation to these allegations of dishonesty, I have already found that the appellant's appeal succeeds in relation to the finding that he was dishonest in failing to notify the GMC without delay of his criminal charge, but I reject his appeals in relation to all of the other findings of dishonesty, which comprise seven in total. I must now then turn to consider the question of impairment and the challenge to the decision on that point in that context.

So far as the conviction is concerned, as I have already indicated the panel considered that this in itself was sufficient to establish impairment. I have already referred to the factors which they had regard to and decided that they were entitled to do so. They went on to say that this was a serious offence. The appellant has argued before me that a conviction for assault under section 39 of the Criminal Justice Act is not, in the scale of seriousness, a particularly serious offence, and it is true that it is an offence which is triable only summarily in the magistrates court, and it is also true that the maximum term of imprisonment that may be imposed on conviction is one of six months’ imprisonment, and that may be compared and contrasted to other offences of assault or violence where there may be a trial on indictment in the Crown Court and where much longer terms of imprisonment are prescribed. However, none of that, in my judgment, detracts from the fact that on any view this was a serious offence, and indeed one can see that from the sentence imposed on the appellant, which was a term of imprisonment, albeit suspended, and which in my view was one which was fully justified. It follows in my judgment that the conclusion of the panel that the appellant's fitness to practice was impaired by reason of that conviction was one which was fully justified, and indeed in my view the contrary cannot be seriously contended.

So far as dishonesty is concerned, the position is that the panel concluded that the appellant's actions and/or omissions demonstrated a pattern of dishonest behaviour over a period of time. They took the view that individually these incidents amounted to serious breaches of the GMC's guidance in relation to professional standards; they took the view that cumulatively they demonstrated conduct that fell far below the standards expected of all registered medical practitioners and which, in the panel's judgment, was capable of undermining public confidence in the profession and bringing the profession into dispute. They went on to say that:

It seems to me that all of those conclusions, in particular since they were made by a panel with greater specialist expertise than this court as to what the effect of such conduct is on someone such as the appellant, is a conclusion which this court cannot possibly fault. Even though I have allowed the appeal in relation to one finding of dishonesty, nonetheless their conclusion that this was a pattern of dishonest behaviour over a period of time cannot be impugned, and in my judgment they were perfectly entitled to make the findings which they did, and I therefore dismiss any appeal in relation to the decisions on impairment.

Finally then, I turn to the question of sanction. Although the panel dealt with sanction by reference to the eight individual allegations of dishonesty which they found proved, whereas I have allowed the appeal on one, it does not seem to me that this is so significant in context that it is materially relevant to their decision on sanction. It also seems to me that I am perfectly able to review their decision on the basis that it should have been taken without reference to that particular charge of dishonesty.

It is clear from the determination of the panel that they had proper regard to the guidance contained in the indicative guidance sanctions promulgated by the GMC in 2009. They recorded, correctly, that the purpose of sanction is protection, not punishment, and that there has to be a proportionate balancing of the interests of the public with those of the doctor. They accepted, correctly, that this was not a case where the appellant posed a risk to patients, but they also observed, rightly, that the public interest is wider than the protection of patients and extends to other matters as well.

It is also clear that they addressed the appropriate sanction by considering, in ascending order of seriousness, the various options available, only considering the ultimate sanction of erasure once they were satisfied that no other sanction would be sufficient or proportionate. In particular they gave careful attention to the question as to whether or not the sanction of suspension would be sufficient, referring again to the indicative guidance given and to the mitigation advanced by the appellant, and they gave detailed reasons for explaining why they considered that a period of suspension would not be sufficient, proportionate or in the public interest, and there is no basis in my judgment for challenging any of those conclusions.

They then went on to consider paragraph 82 of the indicative sanctions guidance, which identifies a non-exhaustive list of ten factors which may make erasure appropriate. They identified five particular factors as being present in this case which the appellant has challenged. The first three can conveniently be taken together: particularly serious departure from the principles set out in Good Medical Practice, i.e. behaviour fundamentally incompatible with being a doctor; a reckless disregard for the principles set out in Good Medical Practice; and abuse of position trust (see paragraph 57 of Good Medical Practice):

The appellant has submitted to me that his conduct cannot sensibly be described as serious or reckless or falling within the ambit of paragraph 57. However, in my judgment what one has here is not only a serious offence of violence against the appellant's then wife, but also a reckless and dishonest campaign by him to avoid the consequences of the subsequent conviction and exclusion by CCO and a determined attempt to avoid being held to account for that behaviour, all of which in my judgment fully justifies the conclusion that all of those features are found in this case.

The other matter which they considered applied was that this was an offence involving violence. Obviously that is the case. The appellant submitted that that cannot always be sufficient, otherwise every offence of violence must lead to erasure, and he also submitted again that this was not the most serious offence of violence. I accept those submissions insofar as they go, but nonetheless, as I have already said, it seems to me that this is an offence of violence and it is serious, with a number of aggravating features.

Finally, persistent lack of insight into seriousness of actions or consequences. Whilst I have no doubt that the appellant would dispute that, it is apparent to me from everything that I have read and seen that that is the case here.

The conclusion of the panel was that his conviction and misconduct was fundamentally incompatible with his continuing to be a registered medical practitioner. The appellant submits that this was too harsh a sanction. When I consider that submission I have to bear in mind, as I have already said, that I should only interfere with the decision of the panel exercising their specialist skill and judgment in determining what sanction is appropriate in a particular case if I am satisfied that the decision is one which is clearly inappropriate. However, as I have said, this is a case where there was conviction for a serious offence of violence with a number of aggravating factors. Added to that, it is a case where there is a serious catalogue of dishonest conduct, where the essential thrust of the conclusion, fully justified, is that it was a deliberate campaign of dishonesty to avoid the consequences of being unable to undertake locum work pending the conclusion of the disciplinary process, and that, in my judgment, is a conclusion which was fully justified on the evidence.

When I add to that the appellant's complete failure to accept his offending or to face up to his criminal behaviour or to express any regret or remorse, either for that or for his dishonesty, then I am quite unable to conclude that the decision was clearly inappropriate, or otherwise that it was a decision which could be categorised as wrong. On the contrary, I am quite satisfied that the decision was plainly right, and, furthermore, insofar as it is necessary for me to exercise any judgment afresh on the basis of my findings on this appeal, I am quite satisfied in all the circumstances that the sanction of erasure is plainly the only sufficient and proportionate sanction in the circumstances. For all of those reasons, with the exception that I allow the appeal against the finding in relation to the allegation of dishonesty at paragraph 24B in relation to allegation 6, I dismiss the appellant's appeal.

That concludes this judgment, and I therefore will address now first of all the form of the order; secondly issues in relation to costs; and thirdly, any other matters which may arise.